2004-11-10 Centre Pointe - Indemnification Agreement - CP Development, LLCINDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Indemnification Agreement") is made
and entered into as of /floe to , 2004, by and between CP DEVELOPMENT
LA QUINTA, LLC, a California limited liability company ("CP Development"), and the
LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the
"Agency"), with reference to the following Recitals.
RECITALS
A. CP Development and the Agency have entered into that certain Disposition and
Development Agreement dated December 18, 2003, as amended by that certain Amendment No.
1 to Disposition and Development Agreement (the "DDA"), pursuant to which, among other
things, (i) Agency has agreed to sell to CP Development, and CP Development has agreed to
purchase from Agency certain real property identified therein as the "Property", which is located
in the City of La Quinta, County of Riverside, State of California, and (ii) CP Development has
agreed to construct, complete, and operate on the Property a commercial project containing a
medical office/surgical facility, a development containing "sanctuary villas," a mid -price suites
hotel, a resort -style condominium/casitas development (the "Casitas Development"), two (2) sit-
down restaurants, and two (2) single-family residential developments (the "Residential
Component"), with forty (40) of the single-family homes restricted for sale to moderate -income
buyers at restricted sales prices, all as more particularly described in the DDA (collectively, the
"Project).
B. The DDA requires CP Development to procure and obtain, as of the effective date
of the DDA until the time specified therein, certain policies of insurance, as more specifically
described in the DDA (the "Insurance Requirements").
C. CP Development has procured insurance (the "CP Insurance") which does not
fully satisfy the Insurance Requirements.
D. CP Development has opened an escrow to effect Agency's conveyance to CP
Development of the Property (the "Escrow"), and has requested that the Agency close the
Escrow and convey to CP Development the Property, notwithstanding that the CP Insurance does
not fully comply with the Insurance Requirements. In connection therewith, CP Development
has represented to the Agency that it will not conduct any construction or any other activities
which are not covered by the CP Insurance on the Property until such time as CP Development
has procured insurance which satisfies the Insurance Requirements, as determined by* the
Agency's Executive Director.
E. The Agency has agreed to close the Escrow, provided CP Development executes
this Indemnification Agreement.
F. The parties hereto now wish to impose on CP Development the obligation to
indemnify the Agency and the City of La Quinta, as more particularly defined in this
Indemnification Agreement, against any claims that would be covered by insurance that
complies with the Insurance Requirements, but that are not covered by the CP Insurance,
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including, but not limited to, claims regarding damage or injury to persons or property resulting
from (i) automobiles; or (ii) construction activities.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Indemnification by CP Development. CP Development hereby agrees that it shall
indemnify, defend, and hold harmless Agency and City and their respective officers, officials,
members, employees, agents, consultants, and representatives, from and against any and all
claims, liabilities, damages, losses, suits, costs and expenses (including but not limited to expert
witness fees and reasonable attorneys' fees) of every kind, nature, and type asserted by any
person or entity that would be covered by insurance that complies with the Insurance
Requirements, but that are not covered by the CP Insurance, including, but not limited to, claims
regarding damage or injury to persons or property resulting from (i) automobiles; or (ii)
construction activities.
CP Development's indemnification obligations herein are in addition to the
indemnification obligations contained in the DDA, and nothing herein is intended to amend or
limit CP Development's indemnification obligations set forth in the DDA. In the event of any
conflict between the indemnification obligations herein and those contained in the DDA, the
indemnification provisions which provide the greatest protection to the Agency shall prevail.
2. Representations and warranties by CP Development. CP Development hereby
represents and warrants that it will not commence construction activities, or any other activities
for which the CP Insurance does not provide coverage as required by the Insurance
Requirements, until such time as it has procured insurance that complies with all of the Insurance
Requirements, as determined by the Agency's Executive Director.
3. Non -liability of Agency Officers and Employees. No officer, official, member,
employee; agent, or representative of Agency shall be personally liable to CP Development, or
any successor or assign of same, in the event of any default or breach by Agency, or for any
amount which may become due to Agency, or any successor or assign of same, or for breach of
any obligation of the terms of this Indemnification Agreement
4. Successors and Assi rg_is. This Indemnification Agreement shall be binding upon
and shall inure to the benefit of the successors and assigns of the respective parties hereto.
5. Governing Law. This Indemnification Agreement shall be governed by and
construed in accordance with the laws of the State of California.
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6. Further Assurances. The parties covenant and agree that they will execute such
other and further instruments and documents as are or may become necessary or convenient to
effectuate and carry out this Indemnification Agreement.
7. Authorily of Signatories to Bind Principals. The persons executing this
Indemnification Agreement on behalf of their respective principals represent that (i) they have
been authorized to do so and that they thereby bind the principals to the terms and conditions of
this Indemnification Agreement and (ii) their respective principals are properly and duly
organized and existing under the laws of, and permitted to do business in, the State of California.
8. Interpretation. The paragraph headings of this Indemnification Agreement are for
reference and convenience only and are not part of this Indemnification Agreement. They have
no effect upon the construction or interpretation of any part hereof. The provisions of this
Indemnification Agreement shall be construed in a reasonable manner to effect the purposes of
the parties and of this Indemnification Agreement.
9. Attorney's Fees. In the event that a party to this Indemnification Agreement
brings an action against another party hereto by reason of the breach of any condition, covenant,
representation or warranty in this Indemnification Agreement, or otherwise arising out of this
Indemnification Agreement, the prevailing party in such action shall be entitled to recover from
the non -prevailing party expert witness fees, and its reasonable attorney's fees and costs.
Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to
attorney's fees shall be entitled to all other reasonable costs for investigating such action,
including the conducting of discovery.
10. Counterparts. This Indemnification Agreement may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the same instrument.
[END — SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Indemnification Agreement has been executed by the
parties as of the date set forth above.
Dated:
Dated:
Dated:
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
By
athe 'ne Jenson, Agency Counsel
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556041.01 all/08/04
"CP Development"
CP DEVELOPMENT LA QUINTA, LLC,
a California limited liability company
By: Oliphant Family Trust
Its: Member
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
"Agency"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
By:
Thomas Genovese
Title: Executive Director
IN WITNESS WHEREOF, this Indemnification Agreement has been executed by the
parties as of the date set forth above.
Dated: 'k6 %4 to *2==4-
Dated:,.,c t b 2 4
Dated: Z1440-�d q
ATTEST:
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M
M. Katherine Jenson, Agency Counsel
882/015610-0061 4
556041.01 all/08/04
"CP Development"
CP DEVELOPMENT LA QUINTA, LLC,
a California limited liability company
By: Oliphant Family Trust
Its: Member
By: :� Q . Ll�r
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
.,By:
Richard R. Oliphant
Its: President
"Agency"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
By:
Thomas Genovese
Title: Executive Director